senate resolution no.157
Senators Irwin, Geiss, McMorrow and Chang offered the following resolution:
Whereas, In Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, the United States Supreme Court established the right to sue federal agents for damages if, acting under color of federal law, they violate rights under the United States Constitution. The threat of accountability is an important deterrent to prevent rights violations before they happen, and the remedy of damages is needed to compensate individuals when violations of their rights cause damage to their persons or property. Without Bivens actions or causes of actions created by Congress, constitutional rights lack teeth, placing constitutional liberties in jeopardy; and
Whereas, The Fourth Amendment to the Constitution of the United States secures people's bodies, homes, and personal property from unreasonable searches and seizures, and it guards against the excessive use of force by law enforcement. This Amendment is meant to protect the people from the sort of abuse seen in Bivens, where an individual, rank-and-file federal law enforcement officer unlawfully entered the private property of a United States citizen within the United States without a warrant and used unconstitutional excessive force against that citizen; and
Whereas, In the 2022 case Egbert v. Boule, the Supreme Court gutted Bivens, vastly restricting a valuable tool for defending the Constitution. The Court's opinion defied precedent and created a new test for whether a Bivens action should be allowed, a test that could hardly ever be satisfied. This closes the door on cases, like Egbert itself, that are nearly identical to the facts of Bivens and fall squarely within its initial, core concern: Fourth Amendment search and seizure. While it does not overrule Bivens, the Court has left only a husk, with no real power to defend the Constitution and the rights of the people; and
Whereas, Even if some Bivens actions could survive Egbert, this case fully immunized Border Patrol agents from suits seeking damages for violations of the Constitution committed in the course of their duties. The Court held that the threat of litigation against Border Patrol agents would interfere with the regulation of the conduct of agents at the border, which has national security implications. As a result, the Court found that it must be left to Congress to decide how to encourage Border Patrol agents to comply with the Constitution; and
Whereas, Under the Immigration and Nationality Act of 1952, Border Patrol agents can exercise many powers without a warrant. Border Patrol agents generally have the power to interrogate aliens and make arrests for certain violations of law, and they have extra powers within a "reasonable distance" of the external boundaries of the United States. Federal regulations establish this "reasonable distance" as 100 air miles from the land boundaries and territorial sea of the United States. Within this 100-mile zone, Border Patrol agents can conduct warrantless searches of certain vehicles for aliens. Additionally, within 25 miles of the external boundaries, they can access private lands, though not dwellings, for the purpose of patrolling the border to prevent the illegal entry of aliens into the United States without a warrant. Warrantless entry onto farms for the purpose of interrogating a person believed to be an alien about their right to be in the United States is also prohibited. But even in these warrantless operations, Border Patrol agents remain subject to the Constitution and can violate constitutional rights; and
Whereas, Michigan's proximity to the United States border gives Border Patrol agents more power to operate without a warrant inside this state. According to documents obtained by the American Civil Liberties Union of Michigan, U.S. Customs and Border Protection claims that the entire state of Michigan falls within the 100-mile zone for warrantless vehicle searches, because the Great Lakes count as international waterways. This increases the number of potential interactions between Michigan residents and Border Patrol agents, which creates more opportunities for violations of constitutional rights – rights that, under Egbert, cannot be vindicated with damages actions. As a result, the constitutional rights of Michigan residents are uniquely threatened by the Egbert decision; and
Whereas, The Supreme Court was incorrect to grant Border Patrol agents blanket immunity from Bivens actions. Rank-and-file Border Patrol agents perform commonplace law enforcement activities, such as interrogations and arrests, including arrests for felonies unrelated to immigration. These activities are materially indistinguishable from the facts of Bivens and do not always implicate national security. Individuals whose rights are violated by Border Patrol agents should have the right to seek Bivens actions in their individual cases; and
Whereas, Unless the Supreme Court reverses its decision in Egbert or a damages remedy is created under federal statute, the people are left powerless to enforce their constitutional rights using damages actions against Border Patrol agents, and possibly against any federal employees. Eviscerating this vital mechanism of deterrence threatens the rights of all under the Constitution, and especially the rights of the people of Michigan; and
Whereas, Congress should exercise its legislative power to create a statutory cause of action for damages caused by a Border Patrol agent's violation of the United States Constitution. The Court in Egbert held that Congress is the more competent branch to authorize a damages remedy against Border Patrol agents. Congress should wield this expertise to calibrate a remedy that will adequately deter violations of the Constitution and make victims whole while simultaneously safeguarding our national security; now, therefore, be it
Resolved by the Senate, That we condemn the United States Supreme Court's decision in Egbert v. Boule for practically eliminating Bivens actions and immunizing United States Border Patrol agents from this powerful tool to defend the United States Constitution and provide meaningful redress to those whose rights are violated; and be it further
Resolved, That we urge the United States Congress to pass and the President of the United States to sign an amendment to the Immigration and Nationality Act of 1952 to define the "reasonable distance" from the external boundaries of the United States as 10 air miles, to enshrine our Fourth Amendment rights against excessive and intrusive warrantless searches and seizures; and be it further
Resolved, That we urge the United States Congress to pass and the President of the United States to sign a law creating a statutory damages remedy against Border Patrol agents for violations of rights protected by the United States Constitution, to replace the Bivens actions barred by Egbert; and be it further
Resolved, That copies of this resolution be transmitted to the Supreme Court of the United States, the President of the United States, the Speaker of the United States House of Representatives, the President of the United States Senate, and the members of the Michigan congressional delegation.